Client’s Guide to Examinations for Discovery (Canadian Guide) Discovery is an opportunity to ask questions about the evidence that the opposing party intends to introduce at trial, and to obtain admissions that will help prove our case or disprove the opponent’s case. Discoveries are held in a court reporter’s office, in the absence of a judge. However, it must be borne in mind that the evidence given at Discovery may eventually be presented at trial, in the form of a transcript of the questions that were asked and the answers that were given. Before you testify at Discovery and at trial, you are required to give an oath or solemn affirmation to tell the truth. If there is any variation between your testimony at Discovery and at trial, the judge or jury might conclude that you were not truthful. Obviously, this can have devastating consequences for your case. How to Prepare for Discovery If you are appearing as a witness on your own behalf, you should review all documents pertaining to the case, and meet with your lawyer to ensure that you are familiar with the issues that are likely to be contentious. If you are appearing at the discovery as the witness for a company, you should also acquaint yourself with the relevant facts known by all other employees of the company. If you are asked a question that you do not know the answer to, or if your testimony suggests that there may be relevant documents that have not already been produced, you may be required to make the necessary enquiries and provide the answer or documents at a later date. This is known as “giving an undertaking.” You may be required to attend a further discovery to answer questions arising out of the answers to the undertakings. A candid discussion with your lawyer prior to the discovery, with full disclosure of documents, will help to prevent the need for a further attendance at discovery. Top 10 Rules for testifying at Discovery The first rule is the basis for most of the other rules: TELL THE TRUTH. Remember that if you give different answers to the same question at trial and at discovery, your credibility will be questioned. The easiest way to ensure that your discovery testimony is the same as your trial testimony is to tell the truth on both occasions. However, even if you intend to be truthful, it is possible to give different answers to the same question if you do not take care to avoid the following pitfalls. If the truthful answer is that you do not know the answer or cannot remember, or can only give an approximation, say so. Do not feel embarrassed into guessing or making up an answer, even if you feel that you should know the answer. Even if the questions are being asked rapid-fire, take the time you need to give a truthful answer. The speed at which questions are asked and answers are given will not show up on the transcript. It will not be adequate to explain at trial that you gave an untruthful answer at discovery out of haste. You cannot give a truthful answer to a question if you have not heard the whole question. Do not anticipate the question, or interrupt with your answer. Remember that the questions and answers will be recorded and typed, and that the court reporter charges for the transcript by the page. The transcript will be unnecessarily long if it is necessary to repeat questions because you interrupted with your answer. It could appear that you have given contradictory answers if you leave room for misinterpretation by giving non-verbal answers. The most common errors are grunting “mmhmm” to mean yes or no, or using hand gestures or nods as part of an answer. If you do not understand a question or some of the words that are used in the question, you cannot give a truthful answer. It is therefore permissible to ask for clarification of the question. However, it is not permissible for you to argue with the other lawyer about the question. Your lawyer will object if an improper question is asked. Whether a question is “improper” is a legal issue. If your lawyer does not object to the question, you are required to answer. Although you will not have an opportunity to seek legal advice during questioning, your lawyer may be able to assist you indirectly if you listen very carefully to any objections that are made. Answer the question fully, but do not volunteer information beyond the question that is asked. Remember that your examination for discovery is conducted for the benefit of your opponent to learn about your case. If the opponent’s lawyer does not ask the questions that will elicit all of your information, that is to your advantage because you may be able to surprise your opponent at trial. Do not be surprised if there are questions that are directed to your lawyer during your examination. This might occur, for example, if there are legal questions about the pleadings or expert reports. However, do not look to your lawyer for answers to the questions that are directed to you. If you do not know the answer to a question, simply say so. If you feel overwhelmed by the questions at any point, this could compromise your judgment and listening ability. The opposing lawyer may test you to see how you fare under stress. You do not want to give opposing lawyer the impression that you will make a poor witness at trial, because this will weaken your bargaining position during settlement negotiations. If the questions begin to make you feel angry, you should ask for a break. What happens after Discovery At Bell Temple, we take advantage of every step in litigation to attempt to bring the matter to a fair and economic conclusion. We always meet with our clients before Discovery to ensure that they are properly prepared. Following Discovery, we present to the opposing lawyer the weaknesses in their case and the strengths in ours, in an attempt to negotiate settlement. In the appropriate case, we will also volunteer information that the other lawyer neglected to obtain during your discovery. If the opposing party refuses to settle on fair terms, we use the opportunity of the time between Discovery and trial to prepare to meet the strengths in the case of the opposition and the weakness in our case.